The Ghosts of D.C. Will Follow You

WASHINGTON—Sometimes, people walk around this city with their own doppelgangers close behind. Early on Thursday morning, Senator Tim Kaine gave a wave as he crossed Maryland Avenue on his way to his joint in the Russell Senate Office building. The doppelganger crossed with him, something out of space and time. I feel fairly confident that back on, say, October 1, 2016, Tim Kaine did not expect to be walking through the wintry breezes across Maryland Avenue on his way to work in his Senate office. That's the way of things, when politics lurches unbidden into the surreal and you get left behind.

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Thursday's big news was that Neil Gorsuch, the president*'s choice to fill the seat on the Supreme Court that's been vacant since the death of Antonin Scalia, had told Senator Richard Blumenthal, Democrat of Connecticut, in their private meeting that he found the president*'s continued heckling of the federal judiciary to be both "disheartening" and "demoralizing." Of course, the president* has a history of this kind of thing going back to the campaign, when he famously complained that Judge Gonzalo Curiel, the Indiana Hoosier who was sitting on the massive fraud trial involving Trump University, could not render a fair verdict because Curiel was "Mexican." He has gone on to hate-tweeting federal judges from the White House because they jumped in and stayed his bungled executive order on immigration.

Naturally, there was some huffing and blowing over what Gorsuch said. The president* tweeted out some old charges that Blumenthal had inflated his military service, and he said the same to Major Garrett of CBS. (To the judge's credit, his staff didn't try to bluster or nuance him out of the comments. They confirmed that Gorsuch had indeed said to Blumenthal what had been reported.) Republicans were dismayed but, predictably, not dismayed enough to take any real action against the erratic blithering coming from the other end of Pennsylvania Avenue.

Instead, once again, the Republicans in the Senate used Gorsuch's nomination as a club on the Democrats for being dilatory on the various walking conflicts-of-interest nominated to be part of the president*'s Cabinet, Thursday's example being Congressman Tom Price, who's been selected to turn the Department of Health and Human Services into an distribution center for worthless vouchers. For example, a little before noon on Thursday, John Cornyn, the Majority Whip, rose to make this very point.

But I can tell he's being pulled in directions that he's not particularly comfortable with. But what he's doing is allowing that loud, marrow—narrow base of his political party lead his conference and his party. I think he knows what's good for the country and for the people we all work for, and that would be to resist the urge to feed the radical elements and to work together for the interests of the American people.

Richard Blumenthal. Radical element.

Wow.

(Which is not to say that the liberal-shaming, which began when Senator Professor Warren was stifled on Tuesday night, isn't having an effect. Some "moderate" Democrats went to the White House on Thursday for a sitdown, which is like bringing a lawn chair to a gunfight. I would also point out that they sat there like lawn ornaments while Trump essentially called their Democratic colleague, Blumenthal, a coward and a liar. Rule 19 courtesies only extend so far, I guess, especially when you're up for re-election.)

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Cornyn wasn't finished.

This last week, President Trump announced the nomination of an incredibly well-qualified judge for the next Supreme Court justice. As of today, several Senate Democrats have indicated that they want an up-or-down vote on that nomination, and I think that's -- that's positive. I hope those are representatives -- representative of the cooler heads that will prevail on the other side of the aisle when it comes to taking up the nomination of this incredibly qualified judge for the United States Supreme Court. People on the right and on the left alike have acknowledged that Judge Gorsuch is an incredibly qualified nominee, a mainstream candidate and widely recognized as such by liberals and conservatives alike. Some of our friends on the other side are grasping at straws, searching for ways to call his background or qualifications into question. Basically, using the nomination as a way to continue to contest and deny our new president the mandate he received from his election on November 8. The number of things from the years 2009-2016 that went down the memory hole in that short passage is probably beyond measure at this point. It was devoutly to be hoped there was still some room down there, though, because Orrin Hatch was up next, and the Republican from Utah can be relied upon to take irony by the lapels and toss it screaming into the abyss. He did not disappoint.

The New York Times' claims that the Republicans stole the Supreme Court seat from President Obama. I' m sure that they are in denial about the election results, and some observers have called this bizarre fiction sour grapes. I think that gives sour grapes a bad name. Between you and me. no judicial position, including the Supreme Court seat occupied by Justice Scalia, belongs to any president. President Obama exercised the power that the Constitution gives him by nominating someone to that vacancy. The Senate exercised the power that the Constitution separately gives us by not granting consent to that nomination. I have news for my Democratic colleagues -- not getting your way does not mean that anyone stole anything.

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You can only listen to this kind of thing before your cerebellum detonates, which is why I spent the morning down at the E. Barrett Prettyman Federal Courthouse, down the hill from the Capitol, at the United States Court of Appeals for the District of Columbia. It was there, in a hushed courtroom on the fifth floor, where the loudest of the doppelgangers does its work.

Born in a strange interlude, it looms over everything being said in the Senate. Its existence gives the lie to everything Cornyn and Hatch and the rest of them are saying about political obligations, constitutional responsibilities, legislative niceties, and the role of the branches of government. The doppelganger laughs at them from the courtroom on the fifth floor. The doppelganger knows so much better than they do what a farce so much of what is being said in the Senate really is—most especially, the pious bleating about partisanship, divisiveness, and the apparently startling revelation to many people that politics are involved in political decision.

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(We should note that the Prettyman courthouse is probably one of the most videotaped buildings in Washington. John Sirica presided over a courtroom here. Its front plaza has hosted press conferences on every major Washington scandal from Watergate through Iran-Contra to Monica Lewinsky. I suspect we'll be seeing more of that plaza on our electric teevee machines through this particular administration. But, I digress.)

The judges of the court are sitting in on the case of American Baptist Homes v. National Labor Relations Board, in which the former are appealing a ruling in a complicated case involving generally the parameters of what rights employees have to see the materials that have been used against them in disciplinary actions. It is the third case of the day. Each side gets only 15 minutes to argue their case. The chief justice of the court is a silver-haired man who sits dead center on the curving bench. His name is Merrick Garland.

His name is a symbol now, a point of argument. It exists outside of the man himself, the way, say, the name Dred Scott does, or Miranda. He is a term of refutation, a magic conjuring word for Democratic senators who are slow-playing the Trump administration in the largely vain hope that they can slow the stampede of unqualified plutocrats into the Executive branch, and in the absolutely vain hope that some Republicans will join them in that effort.

After all, Gorsuch made his remarks about the president* in a private meeting with a Democratic senator. Not one Republican senator even deigned to give such a meeting to Garland after his nomination to the Supreme Court by President Barack Obama. This was unprecedented, no matter how many ill-fitting precedents Hatch and Cornyn stretch themselves to concoct. If the current turmoil over nominations has a face, the curdled anger and phony piety and all the rest of it, it is that of the mild-sounding chief judge of the United States Circuit Court of Appeals. Everything that happened to him makes more sense almost by the day.

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Garland is beloved around the Prettyman courthouse. "He's a great judge," says one government lawyer. "He's very smart, and he always asks tough questions." And he managed to do his job that way during one of the strangest years ever served up to a public servant in Washington, a year in which Merrick Garland was a kid whose calendar was stuck, Groundhog Day style, on December 24th. "He knew, I think, when these guys took over in November, that he was done," said another lawyer. "He stayed on the job, though. You'd have never known that other thing was going on."

The lawyers were about done with their presentations to the court. Garland had one more question he wanted to ask. It concerned the NLRB's basic case, but the question had some resonance beyond the fifth floor of the Prettyman courthouse.

I don't know how to put this in the most diplomatic way. You can probably guess what the question is. Which is, no defense on the merits. At all. No standing, but no defense on the merits in case there is standing. Is there something going on here that I don't get?

I suspect this question has occurred to Merrick Garland more than once over a year that was one endless, unfulfilled Christmas Eve.

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